This SpotCheck End User License Agreement (this "Agreement") is made and entered by and between SpotCheck ("SpotCheck"), and you ("Customer"), a purchaser of a license for and/or user of the web-based software hosted by SpotCheck known as "SpotCheck" (the "Software"). By purchasing a license for and/or using the Software, Customer acknowledges that Customer has received this Agreement and understands, agrees to, and accepts, without limitation or qualification, this Agreement and all of the following terms and conditions of this Agreement without modification:
Subject to the terms and conditions of this Agreement, SpotCheck hereby grants to Customer a non-exclusive, non-transferable license to access and use the Software during the License Term (as defined below) for Customer's own individual educational use only (the "License"). Customer may not share the Software or access thereto with any other individual or entity. Notwithstanding anything in this Agreement to the contrary, Customer will not use the Software in any way that is unlawful or criminal, harms SpotCheck, or breaches Customer's obligations under this Agreement or any other agreement by and between Customer and SpotCheck.
For purposes of this Agreement, "SpotCheck Content" means the images, illustrations, text, data, databases, data structures and relationships, designs, documentation, materials, and other content that are contained in or are otherwise part of or make up the Software and any accompanying documentation made available by SpotCheck to Customer related to the Software (excluding the Customer Content (as defined below) and the Other User Content (as defined below)). The term "Software" as used in this Agreement includes, without limitation, the SpotCheck Content even though the term "SpotCheck Content" is sometimes used separately in this Agreement for purposes of emphasis.
(a) Customer may only use the Software and the SpotCheck Content as expressly provided in this Agreement. Customer may not sell, resell, license, sublicense, copy, download, reproduce, repurpose, modify, transfer, assign, loan, lease, distribute, or otherwise commercially exploit, make available to any other individual or entity, or put to public use the Software or the SpotCheck Content, in whole or in part, in any way. Customer may not create derivative works of or based upon the Software or the SpotCheck Content, or any part thereof. Customer may not modify, adapt, hack, reverse engineer, decompile, or disassemble the Software or the Software's source code or object or executable code, or any part thereof, or cause or permit any third party to do so. Customer will not remove, modify, or obscure any copyright, patent, trademark, or other intellectual property notice included in or on the Software or the SpotCheck Content.
(b) Notwithstanding anything in this Agreement to the contrary, the Software and the SpotCheck Content, or any part thereof, may not, under any circumstances, be (i) used in any print or electronic publication, posted on websites, intranet domains, public bulletin boards, online chat rooms, or the like, (ii) added to centralized image repositories or learning management systems, or (iii) used in performing vision science or machine learning or to train or test deep learning or artificial intelligence algorithms in any way, all of which are strictly prohibited by SpotCheck, without the prior written consent of SpotCheck.
(c) Notwithstanding anything in this Agreement to the contrary, SpotCheck hereby reserves all rights and licenses in and to the Software not expressly granted to Customer under this Agreement (including, without limitation, all modification rights, translation rights, and rental rights and rights to source code and object or executable code). Without limiting the generality of the foregoing, SpotCheck expressly reserves its exclusive right under all applicable patent, copyright, trademark, trade secret, and other intellectual property laws to distribute the Software by any means. Customer acknowledges that, subject to the license granted to Customer by SpotCheck pursuant to this Agreement, all right, title, and interest in and to the Software (including, without limitation, all associated patent, copyright, trademark, trade secret, and other intellectual property rights and all moral rights related thereto) are owned by SpotCheck or SpotCheck's licensors and will be retained by SpotCheck or SpotCheck's licensors.
(d) None of the Software or underlying information or technology may be downloaded, exported, or re-exported into any country to which the United States ("U.S.") has embargoed goods, or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders, or located in or under the control of, any country subject to such export controls.
Any maintenance, updates, modifications, and enhancements made to the Software from time to time during the License Term will be governed by this Agreement, unless accompanied by separate terms.
(a) Key Definitions. The "Customer Content" means the images, illustrations, text, data, databases, data structures and relationships, designs, documentation, and materials (including, without limitation, photographic images depicting various pathological and healthy conditions (the "Images") and written descriptions of the pathological and healthy conditions depicted by each of the Images (the "Image Descriptions")) that Customer uploads, posts, publishes, submits, or transmits to the Software.
The "SpotCheck Products" means any and all software, products, and services created, conceived, developed, or reduced to practice by SpotCheck, either alone or jointly with others, using or incorporating the Customer Content in any manner whatsoever as permitted pursuant to the terms of the Customer Content License (as defined below).
The "Other User Content" means the images, illustrations, text, data, databases, data structures and relationships, designs, documentation, and materials (including, without limitation, photographic images depicting various pathological and healthy conditions and written descriptions of the pathological and healthy conditions depicted by such images) that any other licensee or user of the Software other than Customer uploads, posts, publishes, submits, or transmits to the Software.
(b) Customer Content License. Customer hereby grants to SpotCheck a non-exclusive, transferable, irrevocable, perpetual, fully paid and royalty-free, sublicensable (through several tiers), worldwide license to use, reproduce, view, communicate to the public by any means, distribute, redistribute, perform and display (publicly or otherwise), transmit, stream, broadcast, print, download, copy (whether onto hard disk or other media), translate, edit, modify, repurpose, manipulate, adapt, make, sell, offer to sell, transfer, license, lease, create derivative works from (the "Derivative Works"), and otherwise use and exploit the Customer Content in any manner and for any commercial or non-commercial purpose whatsoever (including, without limitation, for use in education, research, patient care, scholarly publications, and performing vision science and machine learning and to train and test deep learning and artificial intelligence algorithms) (the "Customer Content License").
(c) Ownership of Derivative Works and SpotCheck Products. Notwithstanding anything in this Agreement to the contrary, SpotCheck will be the sole and exclusive owner of all right, title, and interest in and to the Derivative Works and SpotCheck Products (including, without limitation, all associated patent, copyright, trademark, trade secret, and other intellectual property rights and all moral rights related thereto), and Customer hereby irrevocably assigns to SpotCheck without further compensation all right, title, and interest that Customer may have in and to the Derivative Works and SpotCheck Products (including, without limitation, all associated patent, copyright, trademark, trade secret, and other intellectual property rights and all moral rights related thereto). Customer hereby waives any moral rights or other special rights that Customer may have or accrue in any Derivative Works or SpotCheck Products. Without limiting the generality of the foregoing, SpotCheck will have the right to register its copyright in and to the Derivative Works and SpotCheck Products and put its copyright notice thereon.
(a) Legal Obligations. Federal, state, and local laws, as well as ethical and professional licensing requirements impose certain obligations with respect to the protection of privacy and patient confidentiality that may limit the ability of physicians, healthcare providers, and persons acting on their behalf to make use of certain confidential patient information ("Protected Information") and/or to transmit Protected Information to third parties without express consent.
(b) Compliance Representations and Warranties. Customer represents and warrants that Customer will, at all times, comply with all laws directly or indirectly applicable to Customer that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of Protected Information, and require all persons or entities under Customer's direction or control to comply with such laws, including, without limitation, the Privacy Laws. Customer is at all times solely responsible for obtaining and maintaining all patient consents, if applicable, and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view the Protected Information that you transmit, store, or receive in connection with the Software or the Customer Content.
(c) SpotCheck Disclaimer on Protected Information. SpotCheck expressly does not assume any responsibility for Customer's use or misuse of Protected Information or other information, whether intentional or inadvertent, that is transmitted, monitored, stored, or received while using the Software or Customer Content. SpotCheck reserves the right to amend or delete any Customer Content (along with the right to terminate or suspend access to the Software or the Customer Content) that SpotCheck determines, in its sole discretion, violates the above. SpotCheck further does not assume any responsibility to make any determinations regarding Customer's subsequent reporting or notification obligations arising from any use or misuse of Protected Information or other information, these determinations and Customer's actions in response to such determinations remain Customer's sole responsibility.
(d) Survival. Section 5 of this Agreement will survive the termination of this Agreement.
As consideration for the License, Customer will pay SpotCheck the license fees set by SpotCheck for the License at the time Customer purchased the License (the "License Fees") in accordance with the payment terms also set by SpotCheck at that time. All License Fees and other amounts payable by Customer to SpotCheck pursuant to this Agreement will be paid in the lawful money of the United States of America. If Customer does not pay the License Fees or any other amount payable by Customer to SpotCheck pursuant to this Agreement on or before their due date, SpotCheck, at its sole discretion, may, without prejudice to any other rights it has, charge Customer a late fee of 1.5% of the past due amount per month or fraction thereof until such past due amount is paid in full, but in no event more than the maximum rate permitted by applicable law. All License Fees and other amounts payable by Customer to SpotCheck pursuant to this Agreement are exclusive of all applicable federal, state, local, and foreign sales, use, value added, excise, and other similar taxes arising out of or in connection with this Agreement (excluding taxes based on SpotCheck's net income) (collectively, "Sales Tax"). Except to the extent of any applicable and validated exemption, Customer will promptly pay SpotCheck any Sales Tax owed within 30 days after receipt of an invoice from SpotCheck for such Sales Tax.
The term of this Agreement and the License hereunder will begin when Customer begins using the Software and will continue until this Agreement and the License hereunder is terminated as hereinafter provided (the "License Term"). SpotCheck may, at its option and sole discretion, terminate this Agreement and the License hereunder immediately or suspend Customer's access to the Software without notice to Customer if (a) Customer fails to pay when due any License Fees or other amounts that SpotCheck is entitled to receive pursuant to this Agreement or (b) breaches, defaults under, or fails to perform or observe any of its representations, warranties, covenants, or obligations under this Agreement. In addition, SpotCheck may terminate this Agreement and the License hereunder for convenience by giving Customer written notice of termination. Termination of this Agreement and the License hereunder or the suspension of Customer's access to the Software will be in addition to and not in lieu of any other legal or equitable remedies available to SpotCheck under this Agreement or otherwise.
The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or in subparagraphs (c)(1) and (2) of the Commercial Computer Software -- Restricted Rights at 48 CFR 52.227-19, as applicable.
The SpotCheck Privacy Policy (which can be found at www.tryspotcheck.com) applies to Customer's purchase of a license for and/or use of the Software, and its terms are hereby made a part of this Agreement by this reference. In the event of any conflict between the Privacy Policy and this Agreement, this Agreement will control. In addition, the SpotCheck Website Terms of Use (which can be found at www.tryspotcheck.com) apply to Customer's purchase of a license for and/or use of the Software, and its terms are hereby made a part of this Agreement by this reference. In the event of any conflict between the SpotCheck Website Terms of Use and this Agreement, this Agreement will control.
THE SOFTWARE DOES NOT PROVIDE MEDICAL ADVICE OR DIAGNOSE A PERSON'S HEALTH CONDITION. THE SOFTWARE DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP. IN ADDITION, IT IS NOT INTENDED TO REPLACE OR BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, JUDGMENT, DIAGNOSIS, OR TREATMENT. THE SOFTWARE IS A REFERENCE TOOL THAT PROVIDES INITIAL COMPARATIVE INFORMATION FOR INFORMATIONAL PURPOSES ONLY AND IS INTENDED TO BE AN ADJUNCT TO TRADITIONAL MEDICAL INFORMATION SOURCES. THE PRACTICE OF MEDICINE IS A COMPLEX PROCESS THAT INVOLVES THE SYNTHESIS OF INFORMATION FROM A MULTIPLICITY OF SOURCES. THE INFORMATION PROVIDED BY THE SOFTWARE DELIVERS INFORMATION SIMILAR TO THAT OF A TEXTBOOK AND IS BUT ONE OF THE SOURCES THAT MAY BE USED IN ESTABLISHING A DIAGNOSIS. THE SOFTWARE AND ANY INFORMATION PROVIDED THEREBY SHOULD NEVER BE SOLELY RELIED UPON AS A VERIFIED DIAGNOSIS OF A PERSON'S HEALTH CONDITION. SPOTCHECK ACCEPTS NO RESPONSIBILITY FOR THE CORRECTNESS OF ANY DIAGNOSIS MADE BY ANY PERSON OR ENTITY BASED IN WHOLE OR IN PART UPON THE SOFTWARE, THE USE THEREOF, OR ANY INFORMATION PROVIDED THEREBY. THE USE OF THE SOFTWARE AND RELIANCE ON ANY INFORMATION PROVIDED THEREBY IS SOLELY AT ONE'S OWN RISK. ONE SHOULD NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BASED ON THE SOFTWARE, THE USE THEREOF, OR ANY INFORMATION PROVIDED THEREBY. SUCH PERSON SHOULD PROMPTLY CONTACT HIS OR HER OWN HEALTH CARE PROVIDER REGARDING ANY MEDICAL CONDITIONS OR MEDICAL QUESTIONS THAT PERSON MAY HAVE.
CUSTOMER'S USE OF THE SOFTWARE IS AT CUSTOMER'S OWN RISK. THE SOFTWARE AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY SPOTCHECK PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN "AS IS", "WITH ALL FAULTS", AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED BY STATUTE, USAGE, CUSTOM OF TRADE, OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT). Without limiting the generality of the foregoing, SpotCheck makes no representations or warranties regarding the following: (a) the accuracy, correctness, quality, reliability, completeness, security, availability, currentness, or timeliness of the Software or the use of or the results of the use of the Software; (b) the approval or compliance of the Software or any software tools available through the Software by any government or other entity; (c) that the Software is free of errors, omissions, or inaccuracies; or (d) that the Software is free of viruses, worms, trojan horses, or other harmful components that may infect your computer equipment or other property on account of your access to, use of, or browsing in the Software or your downloading of any materials, data, text, images, video, or audio from the Software. Furthermore, when using the Software, information will be transmitted over a medium that may be beyond the control and jurisdiction of SpotCheck and its suppliers. Accordingly, SpotCheck assumes no liability for or relating to the delay, failure, interruption, security, theft, or corruption of any data or other information transmitted in connection with Customer's use of the Software. In addition, no information or assistance given by SpotCheck, or SpotCheck's employees, agents, or independent contractors, to Customer, whether oral or written, will create any warranty, express or implied.
(a) No Liability for Indirect Damages. IN NO EVENT WILL SPOTCHECK BE LIABLE TO CUSTOMER OR ANY PERSON OR ENTITY CLAIMING THROUGH CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR OTHER SIMILAR DAMAGES RESULTING FROM, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, ANY ALLEGED OR ACTUAL BREACH OF THIS AGREEMENT, THE SOFTWARE, OR THE USE OF, THE RESULTS OF THE USE OF, OR THE INABILITY TO USE THE SOFTWARE, WHETHER ARISING UNDER CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, ENTERPRISE LIABILITY, PRODUCT LIABILITY, ANY OTHER THEORY OF LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SPOTCHECK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE OTHERWISE FORESEEABLE (INCLUDING, AS EXAMPLES OF SUCH DAMAGES, BUT NOT IN LIMITATION THEREOF, PERSONAL INJURY OR DEATH, LOSS OF USE, PRIVACY, BUSINESS INFORMATION, DATA, REVENUE, PROFITS, OR GOODWILL, DAMAGE TO BUSINESS OR BUSINESS RELATIONS, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR FACILITIES, ECONOMIC LOSSES, PROPERTY OR EQUIPMENT DAMAGE, OR ATTORNEYS' FEES AND DISBURSEMENTS). THIS SECTION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
(b) Limited Liability for Direct Damages. WITHOUT LIMITING THE GENERALITY OF SECTION 12(A) ABOVE AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE TO THE CONTRARY, SPOTCHECK'S MAXIMUM AGGREGATE LIABILITY, DIRECT OR OTHERWISE, TO CUSTOMER OR ANY PERSON OR ENTITY CLAIMING THROUGH CUSTOMER, IF ANY, RESULTING FROM, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, ANY ALLEGED OR ACTUAL BREACH OF THIS AGREEMENT, THE SOFTWARE, OR THE USE OF, THE RESULTS OF THE USE OF, OR THE INABILITY TO USE THE SOFTWARE WILL NOT EXCEED US$10.00. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN SECTION 12 OF THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SPOTCHECK AND CUSTOMER. THIS SECTION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
CUSTOMER HEREBY AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION THAT CUSTOMER OR ANY PERSON OR ENTITY CLAIMING THROUGH CUSTOMER, IF ANY, MAY HAVE AGAINST SPOTCHECK RESULTING FROM, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, ANY ALLEGED OR ACTUAL BREACH OF THIS AGREEMENT, THE SOFTWARE, OR THE USE OF, THE RESULTS OF THE USE OF, OR THE INABILITY TO USE THE SOFTWARE MUST BE FILED AGAINST SPOTCHECK IN THE APPROPRIATE COURT OF LAW LOCATED IN MONROE COUNTY, NEW YORK WITHIN 1 YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM OR CAUSE OF ACTION WILL BE FOREVER BARRED. THIS SECTION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
Please note that some jurisdictions may not allow the limitations, disclaimers, and exclusions set forth in Sections 11–13 above, so some of those limitations, disclaimers, and exclusions may not apply to Customer. As such, notwithstanding anything in this Agreement to the contrary, the limitations, disclaimers, and exclusions set forth in Sections 11–13 above apply to the maximum extent permitted by applicable law, and are not intended to deprive Customer of any mandatory protections provided to Customer under applicable law. Customer should check Customer's local laws for any restrictions or limitations regarding the limitations, disclaimers, and exclusions set forth in Sections 11–13 above.
Customer represents and warrants to SpotCheck, as of the date of this Agreement and during the License Term, that: (a) Customer is at least 18 years of age and has attained the age of majority in the state in which Customer resides; (b) all information and data that Customer has submitted or otherwise given, or submits or otherwise gives in the future, to SpotCheck in connection with or related to this Agreement, the Software, the License, signing up for or renewing the License, any other agreements, licenses, or subscriptions entered into by and between Customer and SpotCheck, or Customer's use of the Software or any other products or services of SpotCheck is true, correct, and complete in all material respects (in the event that any such information and data changes, Customer will promptly contact SpotCheck to advise SpotCheck of the change and provide SpotCheck with the updated information and data); (c) this Agreement is a valid and binding obligation of Customer and is enforceable against Customer in accordance with its terms; and (d) Customer is not a party to or subject to any agreement, judgment, decree, or order that would directly or indirectly affect its ability to enter into or perform its obligations under this Agreement. This Section will survive the termination of this Agreement.
Customer will, at Customer's sole expense, indemnify, defend, and hold harmless SpotCheck and SpotCheck's officers, directors, managers, members, shareholders, agents, representatives, successors, and assigns (the "Indemnifiable Parties") from and against any and all Losses (as defined below) resulting from, arising out of, or related to: (a) any breach of or any inaccurate, false, or fraudulent representation or warranty made by Customer in this Agreement; (b) any breach or default in the performance of any covenant or agreement made by Customer in this Agreement; (c) the use of, the results of the use of, or the inability to use the Software by Customer or any person or entity claiming through Customer; (d) any violation of the rights of any third party by Customer; or (e) any willful misconduct or unlawful or negligent acts or omissions by Customer. The Indemnifiable Parties will provide reasonable notice to Customer of any claim asserted by a third party against the Indemnifiable Parties that may give rise to a claim for indemnification pursuant to this Section and Customer will take up the defense of such claim. The Indemnifiable Parties will provide reasonable assistance to Customer as reasonably necessary for Customer to defend any such third-party claim, provided that the Indemnifiable Parties will have the right to fully participate in such defense at their own expense. Customer will have the right to settle the matter upon written consent of the Indemnifiable Parties, which consent will not be unreasonably withheld. For purposes of this Section, "Losses" means any and all losses, damages, penalties, expenses, costs, court costs, professional fees (including, without limitation, reasonable attorneys' fees and disbursements), interest, disbursements, judgments, liens, and liabilities of any kind or nature whatsoever (including, without limitation, claims for the injury to or the death of any person or the damage to any property (including, without limitation, loss of use thereof)). SpotCheck reserves the right, at SpotCheck's own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will cooperate with SpotCheck in asserting any available defenses. This Section will survive the termination of this Agreement.
SpotCheck reserves the right, at any time and without notice, to change, modify, add to, or delete portions of this Agreement (including, without limitation, the fees and payment terms for the Software), simply by posting such change to this Agreement on the SpotCheck website or in the application in which it appears. Any such change will be effective immediately upon such posting. It is Customer's responsibility to regularly check the SpotCheck website or such application to determine if there have been any changes to this Agreement and to review such changes. If SpotCheck makes any changes to this Agreement, SpotCheck will indicate at the top of this Agreement the date this Agreement was last revised. A license purchased for and/or use of the Software prior to any such change to this Agreement will continue to be governed by the version of this Agreement in effect at the time of such prior purchase or use. However, Customer's purchase of a license for and/or use (or continued purchase or use) of the Software after any such change constitutes Customer's acceptance of the new Agreement. If Customer does not agree to and accept, without limitation or qualification, all of the terms and conditions of this Agreement (or any future version thereof) without modification, do not purchase a license for and/or use (or continue to purchase or use) the Software. This Agreement may not be amended, changed, or modified by Customer and no course of conduct between SpotCheck and Customer or any other party will be deemed to modify any provision of this Agreement.
(a) This Agreement will be governed by, and interpreted and construed in accordance with, the laws of the State of New York, one of the United States of America, without regard to the principles of conflict of laws, and will be binding on the parties to this Agreement in the United States and worldwide. Any suit or proceeding related to this Agreement will be commenced exclusively in the state or federal courts located in Monroe County, New York, and each party to this Agreement irrevocably consents to the exclusive jurisdiction and venue of such courts.
(b) If Customer breaches, defaults under, or fails to perform or observe any of Customer's covenants or obligations under this Agreement, Customer will pay SpotCheck for all costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements, internal legal costs, court costs, expenses of investigation, and expert fees) incurred by SpotCheck in connection with SpotCheck's enforcement of its rights under this Agreement or collection of any amount due SpotCheck pursuant to this Agreement, whether or not suit is brought. This Section will survive the termination of this Agreement.
(c) Any notice, consent, demand, or other communication required or permitted under this Agreement will be in writing, addressed to the party that the same is directed using the address set forth in this Agreement or with respect to Customer's address, Customer's most recent address on file with SpotCheck (or such other address as the party may designate by like notice from time to time), and deemed delivered to and received by the party that the same is directed for all purposes as of the date that such notice is: (i) with respect to Customer only, actually received by Customer, if sent by electronic mail; (ii) actually received by the Party that the same is directed, if delivered personally; (iii) 1 business day after it was sent, if sent by reputable overnight courier service; or (iv) 3 business days after it is deposited in a regularly maintained receptacle for the deposit of U.S. mail, if sent by registered or certified U.S. mail, postage and charges prepaid.
(d) If any provision of this Agreement is finally determined to be unenforceable, invalid, or ineffective in any action, suit, or proceeding, such provision will be automatically reformed and construed so as to be valid, operative, and enforceable to the maximum extent permitted by law or equity while preserving its original intent. The determination that any provision of this Agreement is unenforceable, invalid, or ineffective in any action, suit, or proceeding will not affect the enforceability of the remainder of this Agreement.
(e) Failure on the part of any party to this Agreement to insist upon strict compliance with any of the terms, covenants, or conditions of this Agreement will not be deemed a waiver of such term, covenant, or condition, nor will any waiver or relinquishment of any right or power under this Agreement at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.
(f) Customer will not assign this Agreement or any of its respective rights or obligations under this Agreement, whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of SpotCheck. Any proposed assignment in contravention of this Section will be null and void. This Agreement is binding upon and will inure to the benefit of the parties to this Agreement and their respective legal representatives, heirs, executors, successors, and permitted assigns.
(g) Customer agrees that in the event there are discrepancies between the terms of this Agreement and the terms of any Customer purchase order or similar document related to the purchase of the License, the terms of this Agreement will prevail.
(h) SpotCheck will not be liable to Customer for SpotCheck's failure to perform any of its obligations under this Agreement (other than the payment of any amount due Customer pursuant to this Agreement) during any period in which its performance is delayed by circumstances beyond its reasonable control (including, without limitation, acts of God, strikes, walkouts, lockouts, freight embargo, riots, civil disturbance, acts of war, acts of terrorism, acts of a public enemy, laws, regulations, or other government proclamations, ordinances, or acts, quarantine, epidemics, unusually severe weather, power failures, earthquakes, floods, fires, explosions, or other catastrophes) or directly resulting from any failure of Customer to perform its obligations under this Agreement. If SpotCheck claims force majeure, then it will be excused for non-performance for as long as its performance is so prevented, delayed, or hindered due to force majeure.
(i) The headings in this Agreement are inserted as a matter of convenience only and will not be used to interpret or construe any provision of this Agreement.
(j) SpotCheck and Customer acknowledge that the relationship of SpotCheck and Customer is that of an independent contractor in connection with the subject matter of this Agreement. In no event will either party to this Agreement be deemed a joint venture party, partner, employee, or agent of the other party by virtue of this Agreement.
(k) This Agreement is intended solely for the benefit of the parties to this Agreement and does not create or grant any right in a person or entity who is not party to this Agreement.
(l) Whenever the context may require, any pronoun used in this Agreement will include the corresponding masculine, feminine, or neuter forms and the singular of nouns, pronouns, and verbs will include the plural and vice versa. This Agreement will not be construed against any party to this Agreement by reason of the fact that the party may be responsible for the drafting of this Agreement or any provision hereof. For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (i) references in this Agreement to "Sections", "paragraphs", and other subdivisions without reference to a document are to designate Sections, paragraphs, and other subdivisions of this Agreement; (ii) the words "herein", "hereof", "hereunder", and other words of similar import refer to this Agreement as a whole and not to any particular provision; and (iii) the terms "include" and "including" will mean without limitation by reason of enumeration.
(m) The rights and remedies set forth in this Agreement for SpotCheck or otherwise conferred upon or reserved to SpotCheck are cumulative and not exclusive of any other rights or remedies which SpotCheck otherwise has or would have under this Agreement or otherwise, and may be exercised singularly, successively, or together at the sole discretion of SpotCheck as often as occasion may arise or as may be deemed expedient.
(n) The provisions of this Agreement that by their terms or by their nature and content survive or are intended to survive the termination of this Agreement will so survive the termination of this Agreement.
(o) This Agreement contains the entire agreement of the parties to this Agreement with respect to the subject matter hereof and supersedes all prior agreements, understandings, and communications, written and oral, relating thereto.